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A BRIEF SKETCH OF THE LIFE OF FRANCIS WHARTON. 



BY 

John Bassett Moore. 



The illustrious editor of the work now given to the public was denied 
the privilege of seeing more than a fragment of it in print. He died 
at the moment when he had finished its preparation for the press, and 
before the proofs of the first volume, as it now stands, had been com- 
pleted : and it fell to others to supervise the work of publication. This 
duty was imposed by resolution of Congress upon the present writer, 
as literary executor of the deceased* editor, and has been discharged 
strictly withiu the scope of the authority conferred by the resolution. 
With the exception of clerical ctfm^ffons ifWhe fetation of authorities 
and in the noting of references, no departures Hiave been made from 
the editor's manuscript, and it may be said that the work appears as 
he left it. 

As the editor, up to the very hour of his death, was busily engaged 
upon this his last great task, as if he were trying securely to adjust 
the capstone upon the monument of legal and historical works which 
his genius and industry had created, it is appropriate that a place 
should be given here to a brief account of his life and labors. 

Francis Wharton was born in the city of Philadelphia, in the State 
of Pennsylvania, on the 7th of March, 1820. On his paternal side, he 
came of a race of men which has given many eminent names to the 
commerce, the polities, and the bar of his native State. En the early 
days of the commonwealth his family belonged to the Society of Friends. 
But his father, Thomas Isaac Wharton, whose mother was Margaret 
Rawle, the bearer of a patronymic distinguished in the legal annals of 
the country, left that religious sect early in life to become a captain of 
infantry in the war of 1812. At the close of the conflict he entered 
upon the practice of law in Philadelphia, and soon afterwards married 
Arabella, second daughter of John Griffith, a merchant of that city, 
son of the Attorney-General of New. Jersey of the same name, and 
brother of William Griffith, a judge of the circuit court of the United 
States, and author of several legal treatises.* This lady is said to have 
been distinguished for great loveliness of character, a fine poetic fancy, 
and a rare power of felicitous expression. 

As a lawyer, Thomas Isaac Wharton was remarkably successful, but 
he also exhibited strong literary instincts. In his earlier days he con- 

* Memoir of Dr. Francis Wharton: Philadelphia, 1891. 
194A 1 1 



2 A BRIEF SKETCH OF THE LIFE OF FRANCIS WHARTON. 

tributed to tin- "Portfolio*' under Dennie's management, and was sub- 
sequently one of the editors of the "Analectic Magazine." Later, 
when la- had devoted himself more Btrictly to legal studies, he, in con- 
nection with others, was employed upon the preparation of a dratt of a 
code of the civil statutes of Pennsylvania, lie was also the editor of 
the first edition of Wharton's (Penna.) Digest, and of the six volumes 
of Wharton's Repoi i-. 

At the age of seventeen Francis Wharton was entered as a student at 
5fale College. In L839 he was graduated ; and he then returned to Phila- 
delphia, and became a student of law in his father's office. In 1843 he 
was admitted to the bar. While a student of law he w rote constantly for 
the periodicals of the day, and contributed many articles to •• Hunt's 
.Merchants' Magazine." This literary habit clung to him after he had 
entered niton the practice of his profession, though his success al the bar 
was rapid. He edited fora time the •• North American and United States 
Gazette," and subsequently, while still engaged in the practice of the 
law. the •• Episcopal Recorder." Be also participated in political affairs 
as a strenuous supporter of the Democratic party, ami when John Iv. 
Kane was Attorney ( reueral of Pennsylvania was one of his assistants. 
It was in this position that he was first led to write on the criminal law 
and to the composition of practical legal teatises. 

In IS VI there came a turning point in Ins career. Two years pre- 
viously he had married Miss Sydney Paul, daughter of Comegys Paul. 
of Philadelphia, and her death in September, L854, resulting in the 
breaking up of his home, seems to have quickened and confirmed the 
inclination he had long exhibited for charitable and religious occu pa 

tions. It is said that while a student of law he desired to become a 
clergyman, but was dissuaded by his father. Put twelve years after 
his admission to the bar he finally abandoned the active duties of a 
legal practitioner, and became a teacher chiefly on theological topics. 
In 1856 In- made a tour through the West, distributing Bibles ami 
tracts, and during this journey visited Kenyon College connected with 
which is a theological seminary), at Gam bier, Ohio. Here he vas 
induced to accept a professorship, and while he lectured on English 
history and literature and on constitutional law. he entered de*plj into 
the religions life of the place and delivered discourses on theological 
Subjects. A part of these maj he found in a book entitled ••Modern 
Theism," which contains a series of lectures delivered by him to the 
students on •• Modern Infidelity." 

In 1859 Dr. Wharton paid his first visit to Europe, and after his 
return was married. on December l'T, I860, to the daughter of Lewis p. 

Ashurst, of Philadelphia. In 1862 he fulfilled his lon.u-cherished de- 
sire to enter the ministry of the Episcopal ( liurch. He was ordained a 

deacon at Cleveland, Ohio, and a month later received priest's orders. 

The first parish to which lie was called was that of St. Paul's, at P.rook- 
line, Mass.. whithei he went in 1863. After six years of successful 



A. BRIEF SKETCH OF THE LIFE OF FRANCIS WHARTON. 6 

• 

labor in tin's place lie went to Europe for a second time, and while there 
completed his work on the "Conflict of Laws." which bore evidence of 
a reviving interest in purely legal studies, which he had never entirely 
abandoned. Fiom this period on he devoted more and more of his time 
to the composition of works on legal topics. 

On his return from Europe Dr. Wharton, finding that an old affection 
of the throat incapacitated him from preaching, resigned his parish and 
accepted a professorship in the Seminary of the Episcopal Church at 
Cambridge, where he lectured, among other things, on Ecclesiastical 
Polity and Canon Law. At the same time he delivered lectures at the 
Boston University on the Conflict of Laws. While thus busily engaged 
as a teacher he produced in rapid succession works on Negligence, 
Agency, and Evidence. But the stress of his many occupations and the 
sedentary mode of life wdch they necessitated were too wearing, and 
the physical weakness, especially in the throat and heart, which they 
engendered, compelled him in 1881 to give up lecturing and go again to 
Europe. He remained abroad till the spring of 1883, when he returned 
to the United States and established his home in his native city of 
Philadelphia, intending to devote himself for the future to his legal 
publications. This plan, however, was soon altogether changed. 

Early in the year 1885 Dr. Wharton was invited to take the post of 
Examiner of Claims, or Solicitor, for the Department of State, at Wash- 
ington. After due reflection he accepted the position, and late in March 
entered upon the performance of its duties. 

It would be difficult to conceive of greater fitness of p'erson for 
place than that of Dr. Wharton for the office to which he was called. 
Although he left the. bar for the church early in life, the impress of his 
legal training remained and his predileciou for the law never forsook 
him. Whatever might be the subject that occupied his attention, it 
was to its legal aspects that he was especially attracted. His mind 
was singularly versatile, and his sympathies were broad and easily 
touched. He possessed, besides, a strong vein of sentiment, which not 
infrequently had a controlling effect upon his conduct. He was fond 
of poetry, and sought diversion and recreation in works of fiction. 
Endowed with, such generous tastes and faculties, technical disputa- 
tions were little to his liking. The narrow view of a question never 
appealed to him. It was in the discussion and application of broad 
and general principles that he found his greatest delight, and it was 
in the natural development of this liberal disposition that the lawyer 
became the eminent and accomplished student of jurisprudence. 

In addition to his knowledge of law, Dr. Wharton possessed an ex- 
tensive acquaintance with history, lie was accustomed to say that 
Englishmen knew less than Americans of English history, and if he 
was to be taken as an example of his countrymen his observation was 
certainly correct. His knowledge of the history of England was singu- 
larly thorough and minute. It was not confined to the leading iuci- 



4 A BRli:r 8KET< II OF THE LIFE OF FRANCIS WHARTON. 

dents which are stated in the formal histories, but extended to the lives, 
tlit- Letters, and the minor accounts of men ana women. With the ex- 
ception of the history of tin- United States, he knew more thoroughly 
that of England than of any other country : but he was also a diligent 
stndenl of history, both ancient and modern, in the most general sense. 
What he lead he was enabled to retain by the po -not' an unusual 

memory. He made few notes and kept no common place hooks, and 
did not burden his mind with useless dates and facts. Bis memory 
was philosophical rather than circumstantial. If questioned in respect 
to a particular circumstance, he often expressed an inability to answer. 
l>ut, if called upon to consider a particular subject, he was ablej with 
a rapidity ami completeness seldom witnessed, to draw from the stores of 
his memory a copious supply of historical illustrations and analogies. 

The labors of Dr. Wharton in history and jurisprudence and his 
fondness for the discussion of general principles led him to the study 
of international law. and prepared the way for his eminence as a pub- 
licist. Ilis first important achievement in this field is found in his 
treatise on tiie "Conflict of Laws," or "Private International Law," 
which includes a comparative view of Anglo-American, Roman, Ger- 
nian. and French jurisprudence. Concerning this work, an intelligent 
and discriminating critic in the '•Southern Law Review" expressed the 

opinion that upon it would rest its author's Lasting and solid fa 

There is reason to believe that Dr. Wharton shared this opinion, for he 
took an evident pride in the book, and often referred to the criticism in 
the •• Southern Law Review" as one of the most appreciative and sat- 
isfactory ever written upon any of his works In 1885 appeared his 
"Commentaries on Law," which embrace chapters on international 
law, both public and private. 

Such was the preparation of Dr. Wharton for the discharge of his 
new duties. Learned both in history and in jurisprudence, and with a 
wide ami established reputation as a publicist, he was able to speak as 
one having authority, lie was not compelled to search for principles 
and precedents; he had already reduced them to possession, and it 
was only necessary for him to apply them. The value of such a prepa- 
ration can be estimated only when we consider the distinctive charac- 
ter of international Law as a branch of jurisprudence. The average 
practitioner, trained in the strict school of the common law and accus- 
tomed to the technical disputat ions of the ordinary judicial courts, finds 
himself, when called upon to deal with matters involving international 
law. confronted with a new type of questious, in the solution of which 
his previous education affords him little assistance. In reality one of 
his first tasks will he to rid his mind, so tar as he may be able, of its 
prep08SeSSion for technical reasoning. The books which he has been 
accustomed to consult, witli a view to obtain a ••case in point." can no 

longei be accepted as guides. Even if he should find in the courts of 
lbs own country a decision upon the question which he has under con- 



A BRIEF SKETCH OF THE LIFE OF FRANCIS. WHARTON. 5 

sideration, he would then be required to ascertain whether that decision 
had been accepted as being in accordance with the principles of inter- 
national law; for in such matters one nation is not bound to accept as 
conclusive the decisions of the courts of another. He would then find 
it necessary to embark upon the study of history and the works of pub- 
licists, and to apply with such guides the principles of reason and jus- 
tice. Although in this department of learning the United States can 
claim such distinguished names as those of Wneaton, Story, Kent, 
Lawrence, Field, and Wharton, the study of international law has for 
the most part been neglected in this country. When the subject is 
taught in the schools, the course of instruction is usually confined to a 
few lectures of a more or less perfunctory character, and perhaps to a 
few lessons from text-books which deal with the most elementary doc- 
trines. No attempt is made to trace the history of the subject, and the 
remarkable contribution of the Government of the United States to its 
progressive development is almost wholly overlooked. A gentleman 
not long since in the diplomatic service of the United States recently 
told the writer that one of the most distinguished publicists of Europe 
declared to him that he found more to interest and instruct him in the 
annual volume of the Foreign Relations of the United States than in any 
other current publication on international subjects. This, he said, was 
due to the freedom aud originality with which questions were treated; 
a circumstance in large measure attributable to the unique position of 
the United States in the family of nations. 

Dr. Wharton entered upon the discharge of his duties in the Depart- 
ment of State with all his accustomed energy and enthusiasm, and for a 
time fouud ample occupation in the daily work of his office. Coming 
into the place soon after a change of administration, he was required 
to give opinions upon a large number of complaints which had in the 
interval been submitted to the Department with a view to their diplo- 
matic presentation to foreigu governments. This influx of claims 
attends every change of admiuistration without reference to its polit- 
ical character. The principle of res judicata, though not infreipiently 
invoked, is not applied with the same strictness in the executive depart- 
ments as in the courts ; and each suitor whose claim may have been 
the subject of an adverse decision finds room to hope that in the change 
of the head of the department his complaint may receive favorable con- 
sideration. In the first year of his official life Dr. Wharton gave for- 
mal written opinions upon 221 claims involving various questions of 
law. But his labors were not in the mean time restricted to the exami- 
nation of claims. Questions of international policy were also the sub- 
ject of his consideration. In the spring of 1885 the Colombian Gov- 
ernment, with a view to suppress an insurrection which had arisen in 
that country, issued two decrees of great importance to foreigu nations. 
By the first of these decrees, certain ports then in the possession of 
the insurgents were declared to be closed to foreigu commerce ; and the 



6 A BRIEF SKETCH OF THE LIFE OF FRANCIS WHARTON 

penalties and forfeitures affixed by Colombian law to smuggling were 
denouuced against the goods which might be impoi ted intoor exported 
from those ports, and against tin- vessels which might engage in trade 
with tilt-in. By the second decree it was declared that the. vessels 
which, u in let the flag of Colombia, wen- then employed by the insur- 
gents in hostile foreign commerce with that porl did not belong to the 
Colombian Government, and had no right to tly the Colombian flag; 
and for these reasons they wnc declared to be beyond the pah' of inter- 
national law, and their repression by the aimed tore- of friendly pow- 
ers was invited. These decrees raised two questions, on which Dr. 
Wharton always held and expressed very decided views — the rights of 
neutrals and the international status of insurgents. The United States 
refused to t real the decrees as sustainable on principles of international 
law. The right of a government t» (dose, by a decree, ports not in its 
possession, not actually blockaded, was denied. At the same time the 
Colombian minister was informed that the United States would not 
treat the vessels of the insurgents as pirates. It is not improper to 
say that Dr. Wharton materially contributed, by his learningaud skill, 
to the argument made by the United States on that occasion. 

Before the close of his first year in the Department of State Dr. 
Wharton began the compilation of a digest of the opinions and deci- 
sions of executive and judicial officers of the United States on ques- 
tions of international law, with legal and historical notes. The work 
being too large and scarcely popular enough in character to be under- 
taken by a private publisher, its printing was provided lor by a reso- 
lution of Congress. An intelligent critic has recently observed that if Dr. 
Wharton hail done nothing else during his industrious life for the sci- 
ence of jurisprudence, the '•International Law Digest" would, quite 
apart from his labors in the field of criminal law and of the COUflict of 
laws, he his enduring monumeut. Such defects as tin* work poss< - 
are inherent in its character. It was drawn not only from published 
documents, but also from the unpublished records of the Department 
of State, beginning at the origin of the Government. In dealing with 
the latter it was necessary, owing to the number of subjects treated 
and the voluminous character of the discussions, to omit a great deal, 
and to select such parts as were deemed illustrative Of the doctiines 

most consistently maintained. Such a process of selection necessarily 
reflects in some degree an editor's personal bias. I'-ut the "Interna- 
tional Law Digest" remains a monument to its compiler's learning aud 
industry, and is full of interest and instruction. The first edition was 
soon distributed, and in 1887, by direction of Congress, a second edition 

was printed. 

After the publication of this work Dr. Wharton undertook the labor 
of editing the ••Diplomatic Correspondence of the American devolu- 
tion." Provision for printing was again made by Cougr ss, and he 

worked at his new task incessantly up to the date of his death. Only 



A BRIEF SKETCH OF THE LIFE OF FRANCIS WHARTON. 7 

a few days before that event he received and corrected some proofs of 
the first volume. 

This brief outline of the life of Dr. Wharton during - the period of less 
than four years which he spent in the Dep irtment of State presents a 
record of unusual character. The activity of his mind was incessant, 
and he wrote with rapidity; but, with all his learning and all his facility, 
it would have been impossible to accomplish in the short space of four 
years the immense and varied tasks he undertook, if, in addition to his 
other ipialities, he had not possessed tbat of untiring industry. " Dogged 
industry"' was the term which he liked to apply to his habit of labor. 
His capacity for work seemed to be almost unlimited, and he was never 
idle. He rose early in the morning, usually about 6 o'clock, and imme- 
diately resumed his tasks. His labors the days could not be said to 
divide ; for he gave few hours to sleep, seldom more than five, and often 
less, and the first hours of the morning generally found him still at work. 
Sometimes he went out early to walk, in order to refresh himself for the 
day's labor; and this was about the only physical exercise he took. He 
usually reached his office before 9 o'clock, and then worked through 
the day without intermission. He not only worked constantly, but also 
eagerly, in order to accomplish as soon as possible tli3 task he had set. 
He possessed in the highest degree vivacity of intellect. This quality 
imparted to the severest labor keen aud apparent pleasure, and contrib- 
uted to sustain his exertions. He was also able to perceive at a glance 
any pertiuency in what he read to the subject under consideration. In 
this way he was able to read with great rapidity. He possessed little 
fondness for books for their own sake. They were merely his instru- 
ments. He valued them solely for what he could obtain from them, 
aud, after extracting what suited his purpose, put them aside. He was 
not what we style a book lover. Hence, as he lived for the most part 
in close proximity to large public libraries, he collected few books, and 
his private library, which was c miparatively sin ill, was not selected 
with reference to his work. His quickness of perception and his abil- 
ity to appreciate at its relative value whatever came under his notice 
enable! him to employ with unusual ease the labors of others. More- 
over, he understood so thoroughly and so comprehensively the subjects 
on which he wr*ote, that, in directing aud utilizing the labors of others. 
he was able to give to each thing its proper place and its appropriate 
effect. Thus he was not compelled to complete one branch of an argu- 
ment before he proceeded to another. Keeping the whole in his mind, 
he was able to pass from one part to another, and, where vacant places 
were left, to till them up as his collection of materials was completed. 

Dr. Wharton's capacity for productive Labor can not be more forcibly 
shown than by an enumeration of his principal works. His first repu- 
tation as a legal author was made by his writiugson criminal law. His 
works on this subject are four in number, and comprise treatises on 
"Criminal Law,'' " Criminal Pleading and Practice," and "Criminal 



8 A BRIEF SKETCH OF THE LIFE OF FEANCIS WHARTON. 

Evidence," and two volumes of" Precedents of Indictments and Pleas." 
The treatise od "Criminal Law " embraces two volumes, and is now in 
its imiili edition : that on " Criminal Pleading and Practice," in one vol- 
ume, has passed through an equal nnmber of editions; that on "Crim- 
inal Evidence" is in two volumes, and is also in its ninth edition. 
The "Precedents of Indictments and Pleas," in two volumes, has 
reached a fourth edition. In conjunction with Dr. Stille he wrote a 
work on " Medical Jurisprudence," which is also in its fourth edition. 
I If next wrote a commentary on "Agency and Agents," in one volume ; 
then a treatise on the ,i Law of Negligence," which is also in one volume, 
and lias reached a second edition. Following these came his work on 
the "Conflict of Laws." also in its second edition: a commentary on 
the "Law of Evidence," in two volumes, now in its third edition: a 
work on "Contracts," in two volumes; and "Commentaries on Law." in 
one volume. Besides these practical treatises, he published a volume of 
" State Trials." a work full of historical interest, with notes written in a 
peculiarly charming style, which appeared in 1849, when the author was 
twenty nine years of age. The "International Law Digest," to which 
reference has already been made. comprises three volumes, and the " Dip- 
lomatic Correspondence of the Revolution," now appears in six volura 
In order to appreciate the extraordinary facility with which this large 
number of voluminous works was prepared, it must he remembered that 
for some years his labors as a writer of treatises on law were suspended, 
and that all through his life he was a constant contributor to periodicals. 
An attempt having been made to describe ami explain in a general 
way the extent of Dr. Warton's achievements as a publicist, it will he 
interesting to consider more in detail the qualities of his mind, his 
habits of thought, and the distinguishing traits of his character. Such 
a combination of faculties as he possessed is seldom witnessed, and it 
was only after seeing him at his daily tasks that one could appreciate 
the richness and variety of his mental endowments. Refer* nee has 
already been made to the quickness and breadth of his comprehension, 
to his capacity for labor, and to the exceptional character of his 
memory. It is only by this combination of faculties that we can ac- 
count for the extent of his acquisitions. No industry, however con- 
stant, could have enabled him to accomplish so much if lie had not 
possessed extraordinary mental powers. His works show the extent 
of 1 1 is erudition. It was in his treatise on the Conflict of Laws, or Pri- 
vate International Law. that he attempted to CO\ er the w idesl field of 
legal investigation. If his acquirements had been wanting either in 
a n i pi i tm I e or in thoroughness, the defect would then have been revealed. 
I'.ut none of his works was ever received with more instant recognition 
or with higher approval, not only by the public, but also by scholars 
ami jurists. It did more than any other of his publications to extend 
his reputation abroad, and no doubt materially contributed to form 
that high estimate of his learning and abilities which induced the Lni- 



A BRIEF SKETCH OF THE LIFE OF FRANCIS WHARTON. 9 

versity of Edinburgh to confer upon him the degree of Doctor of Laws, 
and the Institute of International Law to enroll him as one of its mem- 
bers. For when those honors were conferred upon him the "Interna- 
tional Law Digest" had not been written. 

Dr. Wharton also possessed powers of imagination of a high order. 
It is this that distinguishes the narrow logician from the creative 
thinker. Voltaire said of Dr. Clark that he was a mere reasoning ma- 
chine. This could never have been said of Dr. Wharton, lie did not, 
indeed, possess that highest type of imagination which has enabled a 
few men in different ages to create distinctive systems of thought, and 
to connect their names with new social, political, or legal theories. He 
made no professsion of originality in this rare sense. He was always 
ready to avow his obligations to others, and was wont to disclaim any 
originality of thought. He declared himself to be especially indebted 
to German writers, whose language he understood and whose works he 
carefully studied. But he was never the victim of logic. He sought 
to discover aud apply principles, and not merely to find reasons to 
justify other men's conclusions. He studied and comprehended ques- 
tions in their wider relations, and not singly aud apart. He was es- 
pecially quick to perceive analogies and reasoned much in that way. 
This imparted to his discussion of various topics unusual breadth aud 
suggestiveness aud exceptional harmoniousness of view. 

With his great fondness for history, and his extensive learning, it is 
not strange that Dr. Wharton should have dealt much in precedents, 
but he was never the slave of authority. Stare decisis was not a 
rule whose limitative force he felt himself bound to acknowledge. "So 
it hath been decided" was not enough to silence his objections. That 
he diligently searched the books for opinions aud precedents in order 
to ascertain what had been determined the wealth of his citations 
amply shows. He always knew the latest cases. But he never held 
himself to be precluded from criticising and disapproving what he 
cited, no matter how high the tribunal from which the expressions 
came. 

Though Dr. Wharton often dissented from the authorities he cited, 
his opposition was never factious, nor the result of a fondness for dis- 
putation. Controversies of a personal character he sedulously avoided, 
esteeming it a sign of weakness rather than of strength to seek to win 
a cause by abuse of an adversary. Where he found himself in opposi- 
tion to the courts, it was because their actions did not square with what 
he believed to be the reason, the justice, and the philosophy of the mat- 
ter. When of this conviction, he did not hesitate to dissent and protest. 
The amplitude of his comprehension enabled him to work out a system 
of principles in law, politics, and theology with singular clearness aud 
consistency. To those principles he was devotedly attached ; and he 
was always ready to maintain them. The basal principle of his system 
was that of liberty, and it gave color aud direction to all his thoughts. 



10 A BRIEF SKETCH OF THE LIFE OF FRANCIS WHARTON. 

There was nothing that appealed to him so Btrougly as the efforts of 
men and of natious to work out the problem of self government. He 
never could forget that it was by the exercise of the right of revolution 
that the people of the United states attained their independence and 

assumed a place among tin* nations of tin- earth. The annals of oar 
early history, the struggles, the vicissitudes, ami the triumphs of the 
makers of the Republic were always the subjects of his especial study 

and admiration, and to the exposition of the events of that period, and 
of the causes and course of the conflict, he devoted the last hours of his 
life, it is often mentioned as the reproach of scholars and men of let- 
ters that in the contemplation of abstract themes they lose sight of and 
cease to appreciate the generous motives which operate upon the con- 
duct of peoples in their Struggles for freedom, in the critical study of 
the acts and character of individuals they become oblivions of their sac- 
rifices and patriotic exertions. It was not so with Dr. Wharton. He 
had no sympathy with that spirit of detraction which seeks to belittle 
the beginnings of American history. He was intensely patriotic and 
intensely American. It was his especial delight to dwell upon the sim- 
ple life and the simple manners of our Revolutionary period. He was 
beyond that narrow conception which confounds simplicity with bar- 
barism. It is the tendency of society in every age to consider itself as 
the best exponent of civilization, and to regard its forms and ceremo- 
nies as the embodiment and the test of progress and refinement. This 
delusion Dr. Wharton did not share. He was sensitive to the conven- 
tionalities of life, but lit 1 was able to look beneath its shows and osten- 
tation, and estimate its purpose and value. He felt contempt for igno- 
rance and detested bad manners, and neither pretense nor display could 
conceal them from him or shield them from the shafts of his ridicule. 
On the other hand, he thought that simplicity of life imparted dignity 
to character and enhanced the effect of greatness. 

It has already been observed that the fundamental principle of Dr. 
Wharton's .system of thought was liberty. He ad vocated this princi- 
ple as the beneficent source of all true progress. He believed in free 
thought, free government, and fneseas. His views on all these sub- 
jects arc fully expounded in his " Commentaries on Law.*' In law. as 
governing individual action, he belonged to what be terms the progress- 
ive division of the historical school. " holding that the law of a nation 
18 the product of its conscience and need at each particular era." He 
was equal!} opposed to the analytical school, of which Bentham and 
Austin are the chief exponents, which looks to the final settlement of 
law by a code founded upon the doctrines of utility, ami to the theo- 
cratic school, which claims for its rules jure dioino sanction. In opposi- 
tion to these schools he accepted the arguments Of Hooker ill his great 

work on " Ecclesiastical Polity." This work, as Dr. Wharton observed, 
is unfortunately chiefly known by a single passage containing a sonor- 
ous eulogium on law. Almost the only point on which he agreed with 



A BRIEF SKETCH OF THE LIFE OF FRANCIS WHARTON. 11 

Austin was in thinking that this passage is somewhat rhetorical. Dr. 
Wharton was accustomed to say that it was the least valuable sen- 
tence in the wonderful production in which it is found. According to' 
Hooker, divine law, when applied to men in their mutable relations, and 
not definitive of dogmatic theology, is also mutable. Much more so r 
then, must this be true of human law, which is necessarily formulated 
for the government of men under particular conditions. Referring in 
his "Commentaries on Law "' to Hooker's argument against the theo- 
cratic views of the extreme Puritans, Dr. Wharton says: " Two points 
were taken iu the reply of this illustrious thinker, points equally fatal 
to any system of absolute law : (a) Reason aud revelation, he main- 
tained, including in revelation whatever law claims jure divino sanction, 
have coordinate authority ; reason has to verify the credentials of rev- 
elation, then to define its meaning, then to determine its applicability. 
(b) Whatever concerns man in his mutable relations must of itself be 
mutable ; the boat tosses with the wave on which it reposes, the plas- 
ter takes the mold of the face on which it is impressed." These views, 
which are practicable only when reason is left free, Dr. Wharton fully 
adopted. 

But in order that men may be able to work out their destiny in 
accordance with the dictates of reason there must be free government. 
On this ground Dr. Wharton advocated the widest liberty of individual 
action compatible with social order. Law must, he held, in order to be 
effective, be the emanation of the conscience and needs of the people; 
but he also maintained that it should impose as little restraint as possi- 
ble upon the freedom of action of the individual. He was a disciple of 
Jefferson, and fully accepted the doctrine of laissez /aire. He rejected 
the notion that a majority of the people, because they possess the power 
to rule, have also the right to mold the opinions, and form and regulate 
the lives of the rest of the community. 

In international law Dr. Wharton was a strenuous advocate of liberal 
principles, and in his exposition of the policy of the United States he 
laid especial stress upon the importance of preserving the rights of 
neutrals. Whenever he found a decision either of the executive or of 
the judiciiry which seemed to him to be unduly restrictive of those 
rights he never faded to combat it. There was one case in particular, 
arising out of the civil war in the United States, whose authority he 
never neglected an opportunity to controvert. This was the case of the 
Springbok, in which the Supreme Court of the United States condemned 
a cargo bound for a neutral (British) port on the ground that it was 
intended to be transshipped at that port and forwarded on another ves- 
sel to a port then under blockade. Bis most thorough and exhaustive 
discussion of this case is found in the "International Law Digest." 
The decision of the Supreme Court not having beeu accepted by the 
British Government as being in conformity with the principles of inter- 
national law, it was brought for examination before the British- Ameri- 



12 A BRIEF SKETCH OF THE LIKE OF FRANCIS WHARTON. 

can Claims Commission, organized under the treaty of Washington. 
That tribunal affirmed the correctness of the Supreme Court'* decision, 
notwithstanding the able and convincing arguments against it. Among; 
these Mr. Whartou was wont to refer with especial admiration to that 
submitted to the Commission by his lifelong friend Mr. Evarts, an 
argument full of learning and logic, and well worthy the study of any- 
one who desires to comprehend the principles involved. 

It is not a little remarkable that the last published expression of Dr. 
Wharton's views on law ami government should have contained a pro- 
test against the doctrine laid down by the Supreme Court and accepted 
bj the Commission in the ease of the Springbok. In December, L888j 
the editor of "The Independent" addressed a letter to a number of 
eminent men, requesting suggestions as to what changes were needed 
in the Constitution of the United State- in order to bring- it " into closer 
sympathy with the present status of political thought." Dr. Wharton 
was one of the persons thus addressed, and his reply was published.) 
under the title of " Patches on the Constitution," only a little more 
than a month before his death. It contains the most comprehensive 
expression to be found in so small a compass of his opinions on law. pol- 
itics, and government, and is in every respect so characteristic, both in 
substance and in style, that with the consent of the editor of "The 
Independent" it is republished as an appendix to this sketch. 

It is proper that something should besaid in regard to Dr. Wharton's 
style. In a review of his "Commentary on the Law of Contracts" a 
writer in the English "Law Times" said : 

In certain aspects this is a peculiar law book. It is written with more attention 
to reasonable elegance of style than legal writers usually practise. Full of 

learning and research, il is not wearisome i<> read. Matter is never made the slave 
of form: but, at t he same time, the author avoids those awkward ami by no means 
perspicuous attempts at expression, such as "ami which," or " that that," which 
disfigure our text-books and judgments. Lastly, in incidental sentences it will be 
found that, in estimating the value of principles, the author employs a native orig- 
inality guided rather than expelled by the process of Legal training. 

It is a distinctive feature of Dr. Wharton's books that, in addition 
to their convenience and authority as works of reference, they possess 

a peculiar literary charm. This is due in large measure to the freshness 
Of his thought and the force and vivacity Of his forms of expression. 

His tendency was to be diffuse rather than concise. Be wrote with 

BUCh facility, and could so easily command words in which to convey 
his thoughts, that he was little given to condensation ; but with all the 
learning which his works display he never gives the reader the im- 
pression that his erudition was a burden to him. He read understand- 
ingly, and wrote with a view- to elucidate the propositions which he 
wishe.i to establish. He never consciously or unconsciously sought to 
impress his views by the employment of thai ragueand nebulous style 
of argument h\ which the reader is sometimes led to mistake mysterious 
and intangible generalizations for profundity of thought. If he ever 



A BRIEF SKETCH OF THE LIFE OF FRANCIS WHARTON. 13 

indulged in speculations which could not be reduced to a definite state- 
ment, he nev.er attempted to utter them. He often referred iu a humor- 
ous strain to the mystical productions of writers whose ideas, he said r 
seemed to have been absorbed by an " inverted perspiration." Dr. 
Wharton always endeavored to be perspicuous. Occasionally his 
sentences are somewhat involved and complex: in construction, but they 
are never obscure. They give the impression of having been thrown 
out fresh from the writer's mind iu the vividness and energy of rapid 
composition. He was much given to the employment of a colloquial 
or dramatic form of expression, in which the argument is put into the 
mouth of a person who is supposed to bespeaking in an inartificial and 
familiar way upon the proposition under discussion. Another and con- 
stant quality of Dr. Wharton's style is the subdivision of his argument 
into separate parts, each one of which is pursued aud exhausted by 
itself. The reasons advanced in each part are generally stated in the 
same distinctive and orderly way. This method he always employed 
iu his books, and the habit clung to him even iu his briefer discussions 
and in his purely historical writings. This analytical method of state- 
ment imparted clearness as well as a certain didactic quality to his 
style. It was by the employment of a multitude of reasons, rather than 
by the selectiou and repetition of a single aud overwhelming argument,. 
that he sought to establish his proposition. It was the quick succession 
of blows, rather than the single ponderous shock, that overcame the 
antagonist. 

It is often the fvite of writers who contribute iu no small degree to 
mold opinion to be little known except iu their books. The life of an 
industrious writer of treatises on law is necessarily spent more or less 
in seclusion. He must have time not only for thought, but also for re- 
search. Unlike the author of descriptions of life aud manners, who 
acquires his knowledge by contact with men, the writer on law must 
gleau the books for his materials. His writings have little circulation 
among the mass of the people, and his labors do not reach the popular 
imagination ; hence his personality is generally little inquired about 
and little known. Dr. Wharton, in large measure, escaped this fate. 
He was fond of social intercourse. He especially delighted iu the 
society of young men, whose hopeful views and unchilled enthusiasm 
found a ready response in his own ardent and progressive temper. In 
mind and in thought he never grew old. In his studies and in his 
writings he possessed all the energy and vivacity of youth. These 
traits he carried with him into social life. Wherever a few persons 
were gathered together for social diversion, and Dr. Wharton made 
one of them, he was the life of the company. He led in the conversa- 
tion, and was always sparkling, suggestive, and full of humor. He 
was a master of playful irony. It required a quick and sympathetic 
perception to follow and appreciate him, but even those who could 
thoroughly do neither could not fail to catch the contagion of his lively 
aud spirited manner. At such times his countenance was peculiarly 



14 A BRIEF SKETCH OF THE LIFE OF FRANCIS WHARTON*. 

bright and expressive, and his eyes gave anticipatory dashes of the 
thoughts he was about to utter. Bis humor was of a rare .quality, and 
was turbulent and irrepressible. There were few subjects so serious 
that In- could not perceive in them a humorous aspect. One would 
scarcely look lor such things in a work on criminal law: hut in his 
treatises on that subject we find, under the title of "Diversity of 
Knowledge among Judges," a disquisition on the intoxicant quality of 
liquors, in which the cases and decisions are discussed both upon prin- 
ciple and upon authority, but with a liveliness and bumorousness of 
manner quite unexpected and entertaining. In the « International Law 
Digest" we find entertain men 1 and instruction peculiarly combined in 
the chapter on official aud social intercourse of diplomatic agents. 
The humorous passages found in his serious writiugs very well illus- 
trate Dr. Wharton's manner in general conversation, and show the 
ease with which be could apprehend and state arguments. 

Early in iss!) Dr. Wharton's physical powers began perceptibly to 
fail. The affection of the throat with which he had for a long time 
been troubled to the serious impairment of his voice, assumed an 
aggravated form, rendering his breathing labored and difficult and the 
efforl to speak injurious. He was fully conscious of the critical features 
of his condition; but of all those who were concerned in his welfare he 
himself exhibited the least anxiety. lie was always reticent as to his 
feelings, and rarely referred to the personal incidents of his life: but 
be was, besides, not afraid to look to the end. By the 1st of February 
his malady had made such rapid progress thai it was thought advisable 
that he should £0 to Philadelphia in order that he might undergo ex- 
amination at the hands of consulting specialists. On the morning of 
the day on which he undertook the journey he came to his office as 
usual, in order to look over his correspondence and dispose of any 
business that might require attention. Although fully aware of his 
danger, he exhibited no sign of despondency, but rather a quiet deter- 
mination to face the worst that might come without faltering. The 
lesiilt of t he consultation held in Philadelphia was communicated to 
the writer in a letter 80 illustrative of the t cm per and disposition of the 
sufferer thai it is reproduced in this place: 

I'iiii adelphia, February 1. 1-- 
Deab Mr. Moori : I bare been undergoing a thorough examination bj a con- 
sulting committee of specialists to-day, and they coincide in saying thai there are 
oritioa] Eeal ares in m* case which can only be mel i>> my being confined t < > my honse 
and chamber for two weeks under a specific treatment. Now , as the disease is purely 
local, it will greatlj amuse me it" yon will Bend, as usual, any papers which I can 
repoii upon. 1 will consider this a particular favor. I will also l.r very glad to see 
yon, inn | am positively ordered nol to eaj a word, bo do nol come unless there is 
something yon can explain to me better by talking than writing. Now be bum to 
Bend to me any questions thai oome op, just as you did before. Please show this 
note to Mr. Bayard, with my love. I write this in Philadelphia, expecting to return 
to-night. 

Evei 5 ours, 

F. W. 



A BRIEF SKETCH OF THE LIFE OF FRANCIS WHARTON. 15 

Following this letter was a postscript, requesting that a gentleman 
who was assisting him in the correction of some proof sheets would call 
upon him at his house immediately after his arrival from Philadelphia. 

After his return from Philadelphia Dr. Wharton never left his 
chamber. The treatment under which he was placed required elose 
confinement and absolute abstention from attempts to speak. For a 
time it seemed to afford relief, and he was encouraged to hope that he 
might be out again. It had been suggested that it might be necessary 
to perform a surgical operation, and the prospect that this might be 
avoided tended to dissipate his apprehensions. On the 9th of Febru- 
ary Dr. Wharton wrote as follows : 

Dkar Mr. Moore: Please send down to my carriage a Congressional Register, 
giving a List of congressmen aud our foreign consuls; also twenty or thirty sheets 
of foolscap Department paper; also my mail, aud anything else you may have for 
me. I am getting decidedly better The Salisbury-Sackville paper is excellent. 
The assumption that it is for Eugland to determine how far she will interfere in our 
politics, aud that by international law she is to be the exclusive arbiter of this, is 
intolerable. 

My lips are sealed, but I cau listen, read, and write all the better. 

The document referred to as the "Salisbury-Sackville paper" was 
the communication which Mr. Bayard, on January 30, 18S9, addressed 
to Mr. Phelps, United States Minister at London, in reply to the note 
of Lord Salisbury in the Sackville case, iu which his Lordship assumed 
the position that the Government of the United States, instead of dis- 
missing Lord Sackville from the post of British .Minister at Washing- 
ton, was bound to submit the complaints against him to the judgment 
of his Government, iu order that it might decide whether they were of 
such a character as to require his removal. Dr. Wharton's brief note 
discloses the activity with which he continued to work ; aud his obser- 
vations on the Sackville case show that his interest in current public 
questions had not abated, and that he was still capable of expressing 
his views with vigor and clearness. 

About the middle of February the symptoms of Dr. Wharton's dis- 
ease became more unfavorable. He began to experience greater diffi- 
culty in respiration, and the necessity of a surgical operation again be- 
came imminent. The tone of his communications lost its hopefulness, 
but he continued steadily at work, chiefly upon the "Diplomatic Cor- 
respondence of the Revolution." In a little book entitled the "Silence 
of Scripture," published in 1807, when he was rector of St. Paul's 
Church, in Brookline, Mass., he uttered the following thought: "The 
oars of Providence are muffled. We know not our hour; and hence 
we are to labor as if we were to live for ever, aud trust as if we were 
to die to night." As we look upon his last days, and observe the unos- 
tentatious heroism of his conduct, those words, spoken twenty years 
before, seem prophetic of his end. A few days prior to his decease the 
dreaded operation was performed in order to save him from strangula- 
tion ; but, while the shock weakened his vital forces, he uttered no 



16 A BRIEF SKETCH OF THE LIFE OF FRANCIS WHARTON. 

complaint and gave no sign of mental distress. Ee continued at work 
on some proofs <>[ the present publication, and his corrections betray 
do evidence of disturbance of thought. He was laboring as if he were 
" to live for ever," and trusting as if be wen- •• to die to-night." Prom 
tin- calmness of his demeanor one might suppose that he had long lived 
in the presence of death and had ceased to dread its near approach. 
The lofty purpose, the dauntless resolution, and the abiding faith which 
had borne him through the vicissitudes of a life of unremitting effort 
were never shown with greater clearness than in these last moments. 
In the presence oi death the* secret of his life was revealed. 

Late at night on the 20th of February, L889, Dr. Wharton made the 
first confession of physical weakness which he uttered during his ill- 
ness, lie asked for nourishment and expressed a desire for repose. 
Then in brief sentences, written on slips of paper — for he could not 
speak — he bade good night to those who were watching by his bed- 
side and begged them to retire to rest. Soon after midnight on the 
following morning, as he lay apparently asleep, he was observed to 
turn his head. He gave no sign of anguish, but at that moment lie 
ceased to breathe. 

On the reception of the news of his death the Secretary of State 
issued the following order : 

Department or Sta ik. 

Washington, February21, 1889, 

Dr. Francis Wharton, the Solicitor of this Department, died early this morning in 
this city, and his funeral ceremonies will take place on Saturday next, the 23d 
instant, at 2 o'clock p. in., at his late residence, No. 2013 Hillyer Place. 

Such officers of this Department as may desire to attend the funeral will not be 
required to be present at the Department alter the lionr of 1 p. m. on that day. 

In makiug tins announcement the Secretary of state desires a No to place upon the 
files of the Department a mark of recognition of the public loss sustained by the 
death of Dr. Wharton, whose eminence asajurist and remarkable attainments as a 
scholar are attested by his writings, and have enrolled his name among the d 
renowned publicists of our time. 

His hooks upon the law remain a monument to his sound learning, wide research, 
and untiring industry. 

Within the circle of those permitted to enjoj his personal companionship his 
memory will he cherished as a beloved associate, an honorable gentleman, and a 
sincere ( 'liristian. 

T. F. Bayard. 

The funeral of Dr. Wharton took place on the 23d of February, and 
was at i ended by a large cumber of his friends. He was buried in 

Rock Clerk ( etiieiei \ . 1 1 i',i r 1 1 te c i l y i >f Wash i n o-t on. He left to survive 

him a widow and two daughters. To attempt to describe the life of a 
man in the nearest and tenderesl of social relations always savors of 
desecration. Prom these no hand should seek to remove the veil with 
which all sensitive natures wish to shield their domestic life from the 
eye of prurient curiosity. The remembrance of kindness, sympathy, 

and devotion 18 the appropriate treasure of those upon whom they are 

bestowed. 



"patches" on the constitution. 17 

It is in keeping with Dr. Wharton's life that no studied tribute to 
his character should follow the account of his death and burial. As 
with him the end of existence was the end of labor, so we may permit 
the simple recital of what he accomplished to stand as his most fitting 
eulogy. 

October 10, J 891. 



[The Independent, January 10, 1889.] 

"PATCHES" ON THE CONSTITUTION. 
By Francis Wharton, LL. D. 

Swift, in the u Tale of a Tub," likened the Christian record to three 
coats which a father left to his three sons with these injunctions : 
" Now you are to understand that these coats have two virtues con- 
tained in them ; one is, with good wearing they will last yon fresh and 
sound as long as you lire ; the other is, that they will grow in the same 
proportion as your bodies, lengthening and widening of themselves so as to 
always fit." It so happened, however, that the oldest of the sons, con- 
ceiving that the control of the coats belonged to him, proceeded 
to cover them with patches of whatever finery the fashion of each 
succeeding season might make popular, destroying thereby not 
merely the excellence of their appearance, but their durability and 
elasticity. They could not be durable if they should have their sub- 
stance subjected to the fastening ou and then the tearing off of succes- 
sive layers of stuff. Tbey could not be elastic, so as to grow with the 
body of the wearer, if they were stiffened and clogged by these heavy 
superincumbent brocades. 

Swift's coat, as he thus describes it, is a symbol not merely of the 
scriptural records, but of all systems which are the products of perma- 
nent natural and social conditions. If they are such products, they 
represent in simplicity these conditions, lasting as long as they last, 
growing as they grow, and so enduring and adapting themselves 
because of their very simplicity. Chief among systems of this charac- 
ter is the Constitution of the United States, which is the emanation of 
such conditions of the people of the United States as are permanent. 
It provides for the coexistence of Federal and State sovereignties. It 
provides for the coordination of executive, judiciary, and legislature. 
It gives the National Government, it gives each department of that 
Government, certain clearly defined powers, reserving to States and 
people all powers which are not so assigned. In this way it provides, 
jn case it should not be overlaid with a superstructure of artificial con- 
struction, impairing at once its durability and its elasticity, a system 
of government which, instead of being swept away by new social o r 
194a 2 



18 A BRIEF SKETCH OF THE LIFE OF FRANCIS WHARTON. 

economical developments, receives such developments under its own 
shelter as pan of a harmonious and yet progressive whole. 

Bui the 'Jonstitution of the Tinted States, durable and flexible as it 
is itself, lias had its durability threatened and its elasticity diminished 
by factors not unlike those which Swift allegorized in the "Tale of a 
Tub."* The most potent and mischieV0U8 of these factors was the ter- 
roristic hyper conservatism called forth by the French Revolution. 
Among men of conservative tendencies, among men who distrusted 
democracy on principle, there was a stroDg feeling that a general 
assault on vested rights was at hand, and that they must protect these 
rights by all available means. 

In England, the school that was thus generated was led by Castle- 
reagh, by Perceval, by Eldon, followed by the mass of the aristocracy 
trembling lor their privileges, ami by the great body of squires and 
country gentlemen who were incensed at whatever might disturb their 
bovine mastery of their own particular fields. By these classes both 
Houses of Parliament were dominated. 

The accession to power in 1801 of the Democratic party prevented 
the parallel reaction which had begun in America from affecting the 
executive and legislative departments. But extreme conservatives 
despaired of the capacity of the Constitution as a barrier to resist the 
torrent of Jacobinism by which they thought civilization, religion, 
morality threatened. By Hamilton the fabric was spoken of as " frail 
and worthless;** by Gouverneur Morris its failure was lamented, but 
he thought could scarcely be averted. All that could be done would be 
to prop it up by buttresses and strengthen it by exterior walls, which 
might make it a fortress in which privileges could be protected, instead 
of a temple in which liberty was to reign by maintaining the full and 
harmonious play of State and Federal rights, and by securing to the 
people the undisturbed enjoyment of business facilities and of political 
privileges within the respective orbits of state and of nation. 

There was one great and courageous statesman and judge, however, 
who shared the convictions of Hamilton and Morris without sharing 
their despair, and who, in his position as chief justice of the United 
States from 1S01 to IS'55, aided by an unbroken ascendency over his 
associates, was able to impose on the Constitution constructions which 
were designed to protect existing institutions and to repel Jacobinical 
assaults, but which tend to deprive it of much of that elasticity and 
comprehensiveness on which its durability as well as its utility depend. 

Marshall's great moral and intellectual gifts, as well as his capacity as 
a chief Of conservatism in its then supreme conflict with liberalism can 
be best measured by comparing him with l'.ldon, who led the same 
forces in England. Eldon had nothing to do with politics in his court, 
which, as an equity tribunal, excluded such considerations; but he 
had a great deal to do with them in the cabinet, in which, as Lord 
Chancellor, he held a leading position. Marshall had nothing to do 



"patches" on the constitution. 19 

with politics off the bench, but on the bench he dealt with them in the 
broadest and most effective way, as a Large part of the business of his 
court consisted in settling questions of high constitutional law. Both 
were men of great political courage ; yet Eldon, while prompt and bold 
in the cabinet, was singularly hesitating and procrastinating on the 
bench, while Marshall, when in court, never doubted his conclusions, 
announcing them promptly and emphatically, and with a clearness and 
simplicity in singular contrast with the turgidity and involution of 
Eldon's style. Both were consummate managers of men, but EhJon's 
management was that of the supple courtier, Marshall's that of the 
majestic chief. Eldon was a tactician, maneuvering for present van- 
tage ground; Marshall a strategist, planning campaigns whose field 
should be an empire and whose duratiou an era. Eldon's powers were 
weakened by his jobbery, his greed, his avarice; Marshall's grandeur 
was enhanced by his homely simplicity of life, his scorn of jobbery, his 
indifference to wealth, showing in his own person how little accumu- 
lated hoards of money have to do with greatness of the highest type. 
Both were great lawyers ; but while Eldon was far more proficient in 
the delicate and intricate departments of equity, Marshall surpassed 
him in the application of common sense to the molding of common law. 
Eldon's court of chancery, as such, is now swept away, though many 
of the cardinal doctrines laid down by him in equity are accepted as 
part of the dominant law of England ; and one of the reasons why his 
court, as such, fell uuder the ban was the discredit cast on it by his 
procrastination, his irresolution, and the enormous expense his system 
of patronage imposed on suitors. Marshall's court is now the strongest 
and most influential tribunal in the world; and this is, in a large meas- 
ure, due to the matchless diguicy he imparted to it, and the strong, 
plain, ready sense which his example set for its judgments. And in 
their political achievements the contrast is still more marked. The 
result of Eldon's political labors — the black acts, the repressive and 
bloody legislation as a whole, which his resolute voice had so large a 
part in forcing through — are now utterly vanished. But the construc- 
tions Marshall imposed on the Constitution still remain in greater or 
less vigor. It has been a great misfortune for the couutry that some of 
these constructions have served, like the tags and patches on Swift's 
coat, to impair seriously the comprehensive simplicity and the paucity 
of limitation which adapt that great document, as it stands in the 
original text, to each stage of business or economical development as 
it arrives. Some of the more damaging of the restrictive "patches" 
thus imposed I now proceed to consider. 

1. Purchase and sale of negotiable paper, loaning money on such 
paper or on other assets, purchase of goods to meet advances at home 
or abroad, are matters which can be best arranged and adjusted by the 
cop petition of private interests, and which are, therefore, not within 
the scope of the Constitution of the United States, and can not be 



20 A BRIEF SKETCH OF THE LIFE OF FRANCIS WHARTON. 

brought within its operation without destroying that very capacity of 
adaptation to successive epochs which gives it permanency and com- 
prehensiveness. In May, 1781, as a war measure — the war being then 
at its heighl and the Treasury insolvent — Congress chartered the first 
national bank, under the title of the Bank of North America. In Feb- 
ruary, L791, when the country had scarcely emerged from the turmoil 
of tin- war, when collisions with Prance and with Spain were threatened, 
and when Britain still refused to fulfill the stipulations of the treaty of 
peace, ;i charter was -ranted to the first Bank of the United Stat.-, 
with power to discount commercial paper ami to issue exchange on 
deposits of assets. In February, 1816, a charter to the same eflfoc t was 
again granted, as a measure of Government relief, in the suspension of 
hanking operations which the war of L812 precipitated. This charter, 
if sustainable at all, was sustainable, as were those of 1781 and 1791, 
on the ground that a Government bank was necessary to restore to its 
normal state the currency which the prior war had deranged. But in 
February, 1819, when credit was restored, trade returned to its natural 
channel, and the country entering upon a full course of enterprise call- 
ing for unfettered business activity, the Supreme Court of the United 
States, Chief Justice Marshall delivering the opinion, held that, not as 
a war measure, but as a permanent system of government. Congress 
could constitutionally put in operation a bank whose functions would 
include the buying and selling of commercial paper and the issuing of 
exchange on deposits of all kinds, speculative as well as actual. Of 
this construction that by which, many years afterwards, it was held 
within the constitutional power of Congress to force purchasers of goods 
to take irredeemable paper money in payment, and even to turn gold 
contracts into paper contracts, was a natural outcome. <* 

2. The determination to protect existing institutions from the sup- 
posed enmity of democracy, culminated in the Dartmouth College case, 
decided in the same term as that which affirmed the constitutionality 
of the Bank of the United States. Dartmouth College was then exist- 
in- under a royal charter, which the legislature of New Hampshire 
undertook to amend. The Supreme Court held that such amendment 
was inoperative, because a college corporation is a "private" and not 
a " public" corporation, and because charters of private corporations 
are contracts, which, under the Constitution of the United States, a 
State can not lawfully impair. The reasoning of t he court brought not 
merely colleges, but banks, insurance companies, and common carriers, 
when incorporated, under the head of "private" corporations, so that 
privileges and immunities and monopolies once granted to them could 
not be withdrawn. If that decision had remained operative, a charter 
giving a Stage corporation the exclusive perpetual right tocon\e\ paS- 
Bengers from point to point would have shut out any other carriers <>r 
any other met hod of carriage forever from the route : a charter empow- 
ering them to fix their own rates would make those rates unassailable j 



''patches" on the constitution. 21 

a charter giving the owners of a particular reservoir the exclusive right 
to supply a city with water would prevent any other water supply, no 
matter how inadequate such a reservoir should prove. Had this 
"patch" been unalterably worked into the texture of the Constitution, 
its life would have been short. "If you persist in your supposed con- 
scientious conviction that you must veto all bills removing religious 
tests, your majesty's crown," so the Duke of 'VYellington substantially 
told George IV, "must fall." The majesty of the Constitution would 
have been subjected to a like fate if it was held to contain provisions 
which made perpetual every monopoly, no matter how odious, that had 
been created in the past. 

3. By the law of nations, as construed by the Continental Congress, 
and in the sense in which the term was used in the Constitution of the 
United States, freedom of the sea is secured to neutral merchant ships 
with certain well-defined restrictions. They can not, without peril, 
after notice, enter a blockaded belligerent port, and they are liable to 
confiscation if they attempt such entrance. They are subject to be 
searched at sea for contraband, and such contraband can be confiscated 
if found on board; but the term contraband is limited to munitions 
of war destiued for belligerent use. Outside of these bounds they are 
entitled to traverse the high seas without molestation, and they can 
become carriers for belligerents and for belligerent property, the rule 
being that free ships make free goods. Over and over again Congress, 
during the Revolution, affirmed these positions, and a solemn adhesion 
was given by it to the armed neutrality, which adopted them as the 
basis of its existence. It was with no slight exultation at the prospect 
of prosperity that such a system would bring to American shipping 
that Franklin expatiated on the benignity and wisdom of a policy which 
discouraged belligerency and encouraged peace, and which would give 
the hardy seafaring population of America the control of the carrying 
trade of the world. 

But other views were promulgated by England when engaged in her 
struggle with Xapoleon. Her great enemy had from time to time the 
mastery of the continent of Europe ; she must sink unless she obtained 
the undisputed mastery of the seas. Then there emanated from her 
courts a series of judgments greatly extending belligerent privileges 
and greatly diminishing neutral rights. Merely constructive blockades 
were sanctioned, and, under what was called the doctrine of continuous 
voyages, it was held that if goods were designed (a question as to 
which prizie courts leaned naturally against neutrals) for blockade-run- 
ning, they could be seized at any point on the road, though they were 
to be transshipped at an intermediate port. Contraband was swollen 
so as to include whatever was of value to the belligerent for whose use 
it was supposed to be intended. So far from free ships making free 
goods, enemy's goods were held open to seizure under neutral flags, 
and neutral ships could be searched for them, and the question of bellig- 



22 A BRIEF SKETCB OF THE LIFE OF FRANCIS WHARTON. 

erent ownership was. like all other disputed questions, to be left, when 
the seizure was by a British cruiser, to a British prize court, the fees of 
whose officers depended in a large measure on making good the capture, 
and whose prepossessions wereall in favor of strengthening belligerent 
power iu favor of Britain, then in a struggle almost for national ex- 
istence. 

We must not look too harshly on the tendency of the SupremeCourt 
of the United States to sustain, though sometimes in faltering tone-, 
those modifications of the law of nations which came across the Atlantic 
under the great name of Lord Stowell, clothed in the fascinating diction 
of which that judge was a master, and appealing to the community of 
feeling which made Americans as well as Englishmen look with aversion 
at the unscrupulous ambition of Napoleon, which aimed at the subjuga- 
tion of all civilization to his own rapacious will. England, to many 
minds, seemed the only bulwark against this lawless Csesarism on the 
one side and an equally lawless Jacobinism on the other side; and 
much as we may be amazed, considering what went before and what 
came after, at the devotion shown by leading Federalists to England 
in those dark days, we must be content to acknowledge that this devo- 
tion was at that juncture felt by some of the purest and noblest men 
our country has ever produced. It was not strange then that our 
SupremeCourt should then have receded from the revolutionary doctrine 
of free seas, and should have in a measure sustained the destructive 
views introduced by English courts for the purpose of preserving from 
destruction British maritime supremacy, and with it the cause <>t revo- 
lution itself. Nor was it strange that when we ourselves became bellig- 
erents we Should accept these doctrines, perilous as they are to neutral 
maritime rights, as settled law. But it is ground for profound grief as 
well as amazement that as late as December, L866, the Supreme Court 
of the United States, in the famous case of the Springbok, should have 
held that it was good ground to confiscate the cargo of a neutral mer- 
chant ship; that the ship, at the time of search and seizure, was on 
the way to an intermediate neutral port for transshipment to a blockaded 
port of the enemy, thoueh the seizure was made a thousand miles oft* 
from the port of final destination. 

When this ruling was made, the civil war. b\ the judgment of the 
Supreme Court, had been dosed for nearly a year. We were at peace 
with all the world. Our merchant shippiug.it is true, was driven from 
the seas, hut there was every prospect, on the basis of international 
law, as the Constitution meant it. of our old maritime strength being 
renewed, (hir future had neutrality almost indelibly Stamped on it, 
while the future of the Old World was marked by war. which made 
each sovereignty an armed camp and tilled each -rear port with swift 
cruisers, ready, in case of^unlUiAWo pounce, not merely on an enemy, 

but on neutrals who mucTiL TjS 1 ^ 1 "* to do :u,v «' :m '. vin - trade on the 

high seas. With such a*p9<TspeVT before us we deliberately gave away 



"patches" on the constitution. 23 

tbe opportunity of covering the seas with our merchant service. No 
wonder the English law officers chuckled with delight at such a sur- 
render on our part, and declined, before the mixed commission after 
constituted, to impeach the Springbok ruling. It made England, al- 
ready dominant on the seas, master not only of her shipping, but of 
ours. It would enable her, next time she goes to war with a European 
foe, to cut matters short, and in addition to blockading her enemy's 
ports of entrance, to blockade our ports of exit, and to say : " You are 
the feeders of the enemy — from you come the grain and other staples 
which nourish him — in addition to enlarging the list of contraband so 
as to comprehend most stores, I now, in conformity with your own 
law, as propounded in the Springbok case, blockade your ports, so as to 
keep your ships from carrying out anything the enemy might use. 
You blockaded my neutral port of Nassau; I blockade your neutral 
port of New York." It is not strange that American shipping should 
lauguish when under such a ban as this. 

Such are among the "patches" which have been woven into our 
constitutional coat by its guardians, and which, so far as they are per- 
manent, take from it the property which originally belonged to it of 
growing with our growth. One of these patches, that imposed by the 
Dartmouth College decision, has been substantially got rid of, partly 
by overruling by the court itself, partly by constitutional amendments 
in most States, which preclude granting charters without reservation of 
power of amendment. The "patch" which assumed to the Federal 
Government the power to sell exchauge, to create illusory currency, and 
to absorb banking privileges has been removed, so far as it sanctioned 
a national government bank, by popular action ; but it remains in its 
worst feature in the legal-tender ruling, by which it is held that Con- 
gress can, as a permanent peace system, force the reception of irredeem- 
able paper in payment of debts, old as well as new. And the Springbok 
ruling, while repudiated by the executive branch of the Government, 
still remains unassailed in the records of the judiciary. 

The Constitution itself requires no amendment ; but what is required 
is the removal from it of the " patches," impairing its symmetry, its 
comprehensiveness, its elasticy, and its durability, which have been 
imposed on it by the judiciary. 

Department of State, Washington, D. G. 



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